It is obvious by now that the U.S. Attorney “scandal” is no scandal at all. After nearly five months of congressional investigations and hearings, there is no evidence that anyone, either at the White House or Justice Department, acted inappropriately let alone illegally in replacing a group of U.S. Attorneys after the 2004 elections. Significantly, the recent and much anticipated testimony of former Justice Department/White House liaison Monica Goodling, while very troubling in other respects, also failed to suggest that any improper motivations played a part in what was, at bottom, no more than a badly handled personnel action.
It is certain, however, that the administration’s congressional opponents will not let the matter drop. Not only does the affair offer an opportunity to bloody President Bush politically, but it is part of a larger effort to undercut the presidency itself.
Top federal prosecutors are, and should be, subject to removal by the president. The Constitution vests all of the federal government’s executive power in the president and expressly requires him to “take care that the laws be faithfully executed.” Consequently, when the vast federal law enforcement apparatus acts, it is doing so on the president’s behalf exercising his authority. That is why federal prosecutors, investigators and other law enforcement officials must follow the president’s policies and priorities and why most senior jobs are filled by political appointees including the 93 U.S. Attorneys.
This, in fact, is how American democracy works. A president is entitled to fill the federal government’s 3,000 or so political positions, from cabinet secretaries to special assistants, with his own loyalists so as to ensure that his program the platform on which he was elected by the American people will be implemented. The most senior of these appointments including United States Attorneys must also be confirmed by the Senate. Once installed, however, all political appointees, including U.S. Attorneys, serve at the president’s pleasure. They can be fired for political reasons.
Every U.S. Attorney understands this. They are not “career prosecutors.” And, while many U.S. Attorneys are brilliant lawyers, most got the job because of politics whether in the form of connections to the president, his political party, or important members of Congress, or an ideological compatibility, or all of the above.
Although these particular individuals were treated shabbily in the process, for which Attorney General Alberto Gonzales has publicly apologized, like all other political appointees, they have no legal or moral right to complain when they are displaced by someone with better political credentials. In this, U.S. Attorneys stand in sharp contrast to genuine federal career lawyers, including the Assistant United States Attorneys who actually undertake most federal prosecutions. Here, it must be noted that Monica Goodling’s own acknowledged use of partisan political criteria with respect to hiring for at least some of these positions was highly inappropriate and morally offensive.
Nevertheless, the effort by congressional Democrats, and some Republicans, to transform the legal firing of eight U.S. Attorneys into a new Watergate has much more to do with a wider and more longstanding assault on presidential power than any actual wrongdoing. For years, some members of Congress have sought to undermine the Constitution’s unitary executive principle, seeking to Balkanize the executive branch and weaken or even eliminate presidential control over a range of federal government functions. The effect, of course, would be to aggrandize congressional authority, since agencies “freed” from direct White House supervision would be far more biddable by Congress.
As James Madison warned during the 1787 Constitutional Convention, “xperience had proved a tendency in our governments to throw all power into the Legislative vortex.” To guard against this, the Framers opted for a system of co-equal and separate branches of government rather than a parliamentary system. However, the urge toward a more dominant legislature remains strong and this is nowhere more evident than in the current efforts of Sens. Chuck Schumer, New York Democrat, and Dianne Feinstein, California Democrat, to stage a “no-confidence” vote against Mr. Gonzales based in large part on the U.S. Attorney firings.
No-confidence votes, of course, have no meaning in our constitutional system. They are, however, critical aspects of a parliamentary system where no-confidence votes are an accepted means of ousting unpopular ministers. This makes perfect sense, because in a parliamentary system both the cabinet and government departments are subject to the legislature’s supervision. But the United States does not have a parliamentary system. Neither the president, nor executive branch officials, work for Congress. As result, executive branch officials need only retain the president’s confidence and he is responsible to the American people. Mr. Bush can, and should, ignore any no-confidence vote and continue strongly to defend the core executive power of removing political appointees.
David B. Rivkin Jr. and Lee A. Casey served in the Justice Department under Presidents Reagan and George H.W. Bush.